| Gartner v Unified Windows, Doors & Siding, Inc. |
| 2009 NY Slip Op 09186 [68 AD3d 815] |
| December 8, 2009 |
| Appellate Division, Second Department |
| Michele Lippa Gartner et al., Respondents, v UnifiedWindows, Doors and Siding, Inc., Appellant, et al., Defendants. (Action No. 1.) Michele LippaGartner, Respondent, v Chris Colbert et al., Defendants, and Unified Windows, Doors andSiding, Inc., Appellant. (Action No. 2.) |
—[*1] Law Offices of Michael A. Cervini, P.C., Jackson Heights, N.Y., for respondents in actionNo. 1.
In related actions to recover damages for wrongful death, the defendant Unified Windows,Doors and Siding, Inc., appeals, as limited by its brief, from so much of an order of the SupremeCourt, Queens County (Rosengarten, J.), entered March 19, 2009, as, upon a decision of thesame court entered July 28, 2008, denied those branches of its motion which were to compelDora Lillian Alvarado Hernandez, a plaintiff in action No. 1, and the infant children of DavidLeonard Coy-Sanchez and Elquin Astaiza Ceballos, the decedents in both actions, to appear fordepositions upon oral examination in New York, and granted the cross motion of the plaintiffs inaction No. 1 pursuant to CPLR 3108 and 3110 to compel it to conduct any depositions of DoraLillian Alvarado Hernandez and the infant son of David Leonard Coy-Sanchez in Bogota,Colombia.
Ordered that the order is affirmed insofar as appealed from, with costs.
While depositions of the parties to an action are generally held in the county where theaction is pending (see CPLR 3110 [1]), if a party demonstrates that conducting his or herdeposition in that county would cause undue hardship, the Supreme Court can order thedeposition to be held elsewhere (seeLaRusso v Brookstone, Inc., 52 AD3d 576, 577 [2008]; Hoffman v Kraus, 260AD2d 435, 437 [1999]). Here, the Supreme Court providently exercised its discretion in denyingthe appellant's motion to compel Dora Lillian Alvarado Hernandez, a plaintiff in action No. 1,and the infant children of David Leonard Coy-Sanchez and Elquin Astaiza Ceballos, thedecedents in action Nos. 1 and 2, respectively, to appear in New York for depositions upon oralexamination. The Supreme Court further providently exercised its discretion in granting thecross motion of the plaintiffs in action No. 1 to compel the appellant to take any deposition uponoral examination of Hernandez and Coy-Sanchez's infant son (hereinafter the infant son) inColombia, or to take the depositions of those persons upon written questions, when it determinedthat the infant son and Hernandez, the wife of the decedent in action No. 1—who are thenext of kin and the real parties in interest—were unable to leave Colombia to travel toNew York for deposition (see Hoffman v Kraus, 260 AD2d at 437). Given this unduehardship, it was appropriate for the Supreme Court to [*2]findthat an exception to the rule articulated in CPLR 3110 (1) was warranted.
The Supreme Court proposed three viable, nonexclusive solutions to the appellant withrespect to conducting the outstanding depositions of Hernandez and the infant son pursuant toCPLR 3108: (1) flying the appellant's New York counsel to Bogota, Colombia, to conduct thedepositions upon oral examination at the United States Embassy in that city, with the travel costsand cost of translation to be borne by the plaintiffs in action No. 1, (2) retaining local counsel inBogota to conduct the depositions upon oral examination at that location, and (3) conducting thedepositions upon written questions. We note that, in addition, those depositions may also beconducted via videoconferencing pursuant to CPLR 3113 (d), with the deponents remaining atthe United States Embassy in Bogota, Colombia (see Rogovin v Rogovin, 3 AD3d 352, 353 [2004]). If the appellantelects to pursue this option, the cost of such videoconferencing is to be borne by the plaintiffs inaction No. 1 (see CPLR 3113 [d]).
The appellant's remaining contention is not properly before this Court, since it was raised forthe first time on appeal in its reply brief (see Huang v Sy, 62 AD3d 660 [2009]). Eng, J.P., Belen, Austinand Roman, JJ., concur.